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June 28, 2008

Historic new head of Florida courts talking criminal justice reform

How Appealing links here to all the news coverage of the swearing in of Florida's historic new Chief Justice.  Especially interesting among the articles is this local piece headlined, "New Chief Justice Quince becomes first black woman to head branch of state in Florida; She vows to continue push for reform of criminal-justice system."  Here are excerpts:

Chief Justice Peggy Quince, the first black woman to head any branch of Florida government, used her swearing in ceremony to call for a new commission to fight a widespread perception of unequal treatment in the courts. "No one should come out of this court system feeling that they were treated unfairly," Quince said. "You may lose, but you should not feel that you were treated unfairly."

Quince vowed to continue a push by her predecessor to reform a criminal-justice system that spends $250 million a year housing defendants too mentally ill to stand trial. "Our jails and prisons cannot continue to be the psychiatric hospitals that no longer exist," she said.

Intriguingly, at two Southern states (Georgia and Florida) now have female African-American Chief Justices, while the U.S. Supreme Court has yet to have a single female minority ever serve as a Justice.  Here is hoping that the next President, whomever he may be, will give serious thought to this telling reality.

June 28, 2008 in Who Sentences? | Permalink | Comments (15) | TrackBack

Former SG Ted Olson suggests Heller could impact broad prohibitions on felon gun rights

As regular readers know, I have long been suggesting that a broad ruling in the Heller Second Amendment case could and should impact the broad federal prohibition on felons possessing guns (see old posts here and here and here and here).  I am now very pleased to learn, based on this new article in the New York Sun, that former Solicitor General Ted Olson seems to agree with my legal analysis.

The NY Sun article, headlined "Supreme Court Decision May Permit Felons To Own Guns," is the first major artilce I have seen covering this important angle on post-Heller legal realities.  Here are excerpts from an effective article:

[L]ittle attention has been paid to the effect that the court's decision could have on regulations defining which groups of people can be excluded from gun ownership. "The Court might decide there are some classes of felons that ought to be treated differently from other classes of felons," a former solicitor general, Theodore Olson, said in an interview on Thursday about the prospect that the Supreme Court may eventually permit felons to own guns.

Crimes ranging from murder to writing a hot check can count as felonies.  The felon-in-possession law applies to people convicted of state crimes as well as federal crimes.  At the end of 2001 there were 5.6 million adult felons living in this country who either had been to prison or were still behind bars, according to Justice Department figures.  But the number of felons is actually much higher because many felons are sentenced to probation and never do any time....

In interviews, several legal experts say that lower court judges should interpret the Supreme Court's decision in Heller to permit non-violent felons to own weapons. "Why not? I can't see why they shouldn't have gun rights if they don't have a record of violent crime," a lawyer who financed the Heller case, Robert Levy, said. "If the nature of their crime has nothing to do with the commission of violence than it's a pretty strange punishment that would deprive ex-felons of the ability to defend themselves."...

Among gun rights lawyers there is little enthusiasm for trying to arm felons, a cause that is unlikely to attract much popular support. "I don't sense any great interest in overturning the ban on felons-in-possession," a co-counsel to Mr. Levy who argued the Heller case before the Supreme Court, Alan Gura, said in an interview. "I don't see that as the next battleground."

Regardless, the issue will arise as defense lawyers challenge the Justice Department's routine prosecution of felons who are caught with guns.... The Justice Department is expected to vigorously defend its felon-in-possession law.  Prosecutors like the law because it makes for some of the easiest criminal cases to prove: All that's needed is proof of a felony and proof of gun possession....

Justice Scalia, in writing for the majority in the Heller case, sought to foreclose these very kinds of challenges.  The opinion suggests that only "law-abiding, responsible citizens" enjoy Second Amendment rights.  "Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill," Justice Scalia wrote. Yet, in a dissent, Justice Stevens suggested that the majority wasn't being true to its own logic. "Even felons (and presumably irresponsible citizens as well)" can invoke the Bill of Rights, Justice Stevens wrote.

Some related posts (all of which, except the first, were written before Heller was handed down):

June 28, 2008 in Second Amendment issues | Permalink | Comments (18) | TrackBack

Noticing the religious right's prison awakening and a new politics

This New York Times piece, headlined "Unlikely Allies on a Former Wedge Issue," discussus the political activism of some evangelical Christians concerning prison reform.  Here are snippets from an effective piece:

During his years as the attorney general of Virginia, Mark Earley periodically visited his state’s prisons. In a very real way, he was looking at the human consequences of his career as a public servant, the men and women jailed for fixed, lengthy sentences without parole under laws Mr. Earley had endorsed. Not surprisingly, many inmates pulled back a few steps when introduced to their visitor.

Eventually, though, Mr. Earley took their measure. What he discovered, he recalled in a recent interview, were “not the Ted Bundys, the mass murderers” but “kids who reminded me of my kids, serving 5, 10, 15 years for drugs and going out and being rearrested again.”

In those moments of recognition, Mr. Earley began a startling transformation from a tough-on-crime crusader to an advocate for prison reform and a prominent critic of the very type of drug laws he had formerly promoted. Since leaving the attorney’s general’s position in 2001, Mr. Earley has taken his new cause to a position as president of Prison Fellowship Ministries, a national organization based in the Washington suburbs.

Motivated both by religious faith and a secular analysis of public policy, Mr. Earley and the fellowship’s vice president, Pat Nolan, a former California legislator, have regularly testified before Congress, written op-ed essays and given speeches on behalf of efforts to roll back mandatory-minimum sentencing, equalize penalties for crack and powder cocaine, and offer nonviolent offenders treatment rather than incarceration, among other initiatives....

“What’s distinct is that we’re in an ‘Aha!’ moment now,” Mr. Earley, 53, said in a phone conversation.  “The crime issue used to be such a driving wedge between liberals and conservatives, Democrats and Republicans, and now it’s not. In the presidential campaign this year, when have you heard crime as a wedge issue? It’s a common-ground issue, and no one would have envisioned that in the ’70s and ’80s.”...

“What the Prison Fellowship brings to the discussion is a different approach, a different perspective, that says this is not a liberal-versus-conservative debate,” said Marc Mauer, the executive director of the Sentencing Project, a group based in Washington, D.C. “This is about what is effective policy and compassionate policy.”...

What brought Mr. Earley and Mr. Nolan into the debate was a mix of factors. Before their arrival, Prison Fellowship Ministries — founded by Charles Colson after he served a prison sentence for his role in the Watergate scandal — had already staked out reformist positions on prison rape and prisoner rehabilitation.  Mr. Earley referred to his political evolution as “an attitude-adjustment by God.”  Mr. Nolan, 58, experienced his own road-to-Damascus moment while serving a two-year prison sentence in the mid-1990s on a corruption charge. “I went into prison believing in God, and I came out knowing him,” he said. “I understood how much he loved us, even in a dark place.”

Some related posts:

June 28, 2008 in Scope of Imprisonment | Permalink | Comments (12) | TrackBack

June 27, 2008

Second Circuit affirms federal death sentence

As detailed in this AP story, the Second Circuit today affirmed the federal death sentence of Donald Fell.  The full opinion, which can be accessed here, runs far too long for me to consume on a late Friday afternoon.  Folks still energized after a very long week are encouraged to note anything notable in the Fell opinion via comments.

June 27, 2008 | Permalink | Comments (0) | TrackBack

Lawyer Scruggs gets smoked with five-year max prison term

As detailed in this local report, "Dickie Scruggs received the maximum 5 years in prison in $250,000 in fines for a crime Judge Neal D. Biggers Jr. called 'reprehensible'."  Here are more details:

Scruggs faced a maximum sentence of five years but argued that he should be sentenced to 30 months. He pleaded guilty in March to conspiring in 2007 to bribe Circuit Court Judge Henry L. Lackey, who cooperated with federal investigators.

Biggers entered the courtroom at 10 a.m. sharp and it was soon obvious from what he said about the findings in the pre-sentencing report, that the judge would hand down a stiff sentence. He said, "There is no question in the court's mind that Mr. Scruggs, Mr. Richard Scruggs, was a leader and a planner (in the conspiracy). He has said he came into the scheme late. Regardless, he was the leader, he was the money man."

In fact, Biggers said Scruggs had entered into the scheme so easily that it made him wonder whether Scruggs had done such a thing before and indeed evidence indicates that he may have....

Biggers also questioned why Scruggs would be paying legal settlement fees to non-lawyers.  He did not mention any names, but it was clear that he was referring to the elusive Delta businessman P.L. Blake, who expected, over the course of a settlement Scruggs reached with tobacco companies, to receive $50 million in fees.

June 27, 2008 in White-collar sentencing | Permalink | Comments (2) | TrackBack

DC Circuit affirms (but questions fairness of) acquitted conduct enhancement

The DC Circuit this morning in US v. Settles, No. 06-3090 (DC Cir. June 27, 2008) (available here), affirms a within-guideline sentence that included an acquitted conduct sentencing enhancement under the guidelines.  Though rejecting Fifth and Sixth Amendment challenges, the panel has this to say about the apparent unfairness of such sentence enhancements:

To be sure, we understand why defendants find it unfair for district courts to rely on acquitted conduct when imposing a sentence; and we know that defendants find it unfair even when acquitted conduct is used only to calculate an advisory Guidelines range because most district judges still give significant weight to the advisory Guidelines when imposing a sentence.  At his sentencing, Settles himself cogently explained the point directly to the court: “I just feel as though, you know, that that’s not right. That I should get punished for something that the jury and my peers, they found me not guilty.” May 19 Tr. at 29.  Many judges and commentators have similarly argued that using acquitted conduct to increase a defendant’s sentence undermines respect for the law and the jury system....

For those reasons, Congress or the Sentencing Commission certainly could conclude as a policy matter that sentencing courts may not rely on acquitted conduct.  But under binding precedent, the Constitution does not prohibit a sentencing court from relying on acquitted conduct.

That said, even though district judges are not required to discount acquitted conduct, the Booker-Rita-Kimbrough-Gall line of cases may allow district judges to discount acquitted conduct in particular cases – that is, to vary downward from the advisory Guidelines range when the district judges do not find the use of acquitted conduct appropriate....  Because the District Court here chose not to vary below the advisory Guidelines range, however, we need not and do not decide that question.

Notably, the defendant in Settles does not appear to have challenged his sentence on reasonableness grounds.  In light of Gall's statement about the importance of "promot[ing]e the perception of fair sentencing," a reasonableness challenge should have more juice than the standard (and frequently rejected) constitutional complaints.

June 27, 2008 in Booker in the Circuits | Permalink | Comments (0) | TrackBack

Should and will sex offenders support new constitutional challenges to gun registration?

In this post I suggested that, after Heller, DC and other localities might try to regulate guns through the kinds of registration requirements many states have to regulate sex offenders.  However, as detailed in this website detailing a new Second Amendment lawsuit against Chicago's gun regulations, registration requirements for guns that are much less onerous than sex offender registration requirements are already coming under constitutional attack.  Here is a snippet from the press release about the new suit:

Following Thursday’s (5-4) ruling by the U.S. Supreme Court in the case of District of Columbia v. Heller that the Second Amendment protects an individual civil right to keep and bear arms, and that a municipal gun ban violates that right, the Second Amendment Foundation (SAF) and the Illinois State Rifle Association (ISRA) filed a federal lawsuit (complaint) challenging the City of Chicago’s long-standing handgun ban....

Attorney Alan Gura, who argued the District of Columbia challenge before the high court, and Chicago area attorney David G. Sigale, represent the plaintiffs. “Our goal,” Gura said “is to require state and local officials to respect our Second Amendment right to keep and bear arms.  Chicago’s handgun ban, and some of its gun registration requirements, are clearly unconstitutional.”...

Under the gun law currently in place, firearms must be re-registered annually. “Each time,” Gura said, “a tax is imposed, forms must be filled out, photographs submitted.  A person who owns more than one gun will find herself or himself constantly in the process of registering each gun as it comes due for expiration.  If registration is to be required, once is enough.”

I wonder if any groups concerned about the onerous registration requirements imposed on sex offenders will get behind the efforts by gun groups to attack onerous registration requirements imposed on gun owners.  If (when?) gun owner succeed in getting severe registration requirements declared constitutionally unreasonable, then sex offenders may have a much easier time attacking the constitutionality of their registration requirements.

June 27, 2008 in Second Amendment issues, Sex Offender Sentencing | Permalink | Comments (4) | TrackBack

Is Obama's reaction to SCOTUS rulings an example of new or old politics?

I have not blogged the political impact of the Supreme Court's work in Kennedy and Heller, in part because I want to focus on theory and dotrine before turning to politics.  Nevertheless, this effective Time article, headlined "Obama's Supreme Move to the Center," captures the intriguing developing political story surrounding the Supreme Court's recent work.  Here is how the piece starts:

When the Supreme Court issues rulings on hot-button issues like gun control and the death penalty in the middle of a presidential campaign, Republicans could be excused for thinking they'll have the perfect opportunity to paint their Democratic opponent as an out-of-touch social liberal. But while Barack Obama may be ranked as one of the Senate's most liberal members, his reactions to this week's controversial court decisions showed yet again how he is carefully moving to the center ahead of the fall campaign.

On Wednesday, after the Supreme Court ruled that the death penalty was unconstitutional in cases of child rape, Obama surprised some observers by siding with the hardline minority of Justices Scalia, Thomas, Roberts and Alito.  At a press conference after the decision, Obama said, "I think that the rape of a small child, six or eight years old, is a heinous crime and if a state makes a decision that under narrow, limited, well-defined circumstances the death penalty is at least potentially applicable, that that does not violate our Constitution."

Then Thursday, after Justice Scalia released his majority opinion knocking down the city of Washington's ban on handguns, Obama said in a statement, "I have always believed that the Second Amendment protects the right of individuals to bear arms, but I also identify with the need for crime-ravaged communities to save their children from the violence that plagues our streets through common-sense, effective safety measures.  The Supreme Court has now endorsed that view."

June 27, 2008 in Campaign 2008 and sentencing issues | Permalink | Comments (6) | TrackBack

June 26, 2008

The best post-Heller test case for felon self-defense gun rights?

Last month I highlighted in this post what would appear to be a very hard case in the wake of Heller's protection of an individual Second Amendment right in service to the natural right of self-defense.  The case, US v. Alston, No. 06-1559 (3d Cir. May 20, 2008) (available here), affirms a mandatory 15-year sentence in a felon-in-possession case. 

As detailed in this prior post, it was undisputed that former felon Robert Alston carried a firearm fo a short period due to "a legitimate fear for life or limb" and he testify against local thugs who thereafter threatened Alston and his daughter.  Despite these undisputed circumstances, the Third Circuit affirms the district court's decision that Alston should not be allowed to even argue the defense of justification to a jury when being prosecuted for felon-in-possession.  As I suggested before, I have a hard time seeing how those who genuinely ascribe to the logic and rhetoric of the majority's opinion in Heller can readily justify placing Mr. Alston in federal prison for 15 years simply because he carried a gun for self-defense for a short period when indisputbly facing "a legitimate fear for life or limb."

Because of Alston's criminal record, perhaps he is not the poster child for challenging felon-in-possesion laws through the newly established Second Amendment individual right.  But the facts of his case are remarkable, and all he seeks is a right to argue self-defense necessity to a jury.  And if this is not a fitting and hard post-Heller test case, perhaps readers can suggest others.

June 26, 2008 in Second Amendment issues | Permalink | Comments (13) | TrackBack

A quote for all constitutional seasons

Here is a notable quote from a prominent activist troubled by a recent Supreme Court ruling that overturns a piece of crime-fighting legislation:

The [Court's recent] decision ... will most likely embolden criminal defendants, and ideological extremists, to file new legal attacks...  [T]hose attacks can, and must, be successfully resisted in the interest of public safety.

Though I could readily imagine this quote from a legislator troubled by the Kennedy ruling preventing states from enforcing capital child rape laws, in fact it comes from the head of the Brady Campaign complaining about Heller.  Ah, the curse of rights.

June 26, 2008 in Who Sentences? | Permalink | Comments (13) | TrackBack

Seeking a feminist perspective: is the Kennedy opinion sexist?

I am disappointed that folks at Feminist Law Professors and other prominent bloggers concerned about mysogny have not yet provided a gendered perspective on the Supreme Court's Kennedy ruling.  Rape is a gendered crime, and the Supreme Court's 1977 Coker opinion incorporates lots of language and themes that reflect the antiquated gendered view of the nine old men who were on the Court at that time.  (When I teach these topics, the women in my class are uniformly offended by some of the language in Coker that is quite dismissive of the harms suffered by rape victims.)

Justice Kennedy's opinion for the Court in Kennedy uses language that is much more sensitive to the harms of rape. Nevertheless, the ruling still essential embraces the fundamentals of Coker.  And, better language notwithstanding, the ruling in Kennedy asserts that an evolved moral society does not view even the worst forms of rape to be as tragic as many killings, and it concludes that states are constitutionally misguided when seeking to treat the most horrible rapes as seriously as some horrible killings. 

Disappointingly, Justice Ginsburg, the only woman on the Court and one with a long record of feminist concern, did not follow-up her seemingly gendered questions at oral argument with an opinion in Kennedy.  Consequently, I am eager to know whether my own feminist leanings are misguided when I worry that the Kennedy ruling reflects a kind of implict or unconscious sexism.

Some related recent posts on Kennedy:

June 26, 2008 in Kennedy child rape case | Permalink | Comments (27) | TrackBack

Dealing with dangerousness: can, will, should DC regulate guns like states regulate sex offenders?

As the Heller majority opinion recognizes, handguns can be used for lots of good purposes, but also may be dangerous and can cause great harm in a community.  The same might be said for released sex offenders: they can do lots of good things, but also may be dangerous and can cause great harm in a community.  Though the parallels are imperfect, it does suggest that DC and other jurisdictions interested in gun control might try now to regulate guns the way many jurisdictions now regulate sex offenders.

Specifically, sex offenders are typically required to register where they live, to notify authorities when they move, and to update their registration every few months.  In addition, many states prohibit sex offenders from living in the vicinity of schools and other areas where kids congregate.  And the failure to comply with these regulations can lead to criminal liability under state and federal laws.

So, can, will and should DC take the same approach to handguns and their owners?  Can and should DC pass new legislation requiring those seeking handgun licenses to register where they live (and where in their homes guns are kept), to notify authorities when they move, and to update registrations every few months?  Can and should DC prohibit gun owners from living near schools or other areas where kids congregate?  Should there be public websites where concerned parents can find if any registered gun owners are living nearby?

Though perhaps enforcing strict registration rules with severe criminal liability might go too far after Heller, the majority opinion hints that enforcing these regulations through fines and gun forfeitures could withstand constitutional scrutiny.  Indeed, DC might be able turn this into a money maker by demanding that gun owners (like car owners) pay a sizable fee for maintaining the gun registry and can charge very large fines for the failure of a gun owner to maintain his registration.

In short, to the extent that a lot of government regulation of sex offenders (not to mention alcohol and tobacco) are permitted in the name of public safety, will it really be that hard for DC and other jurisdictions to develop more refined (and potentially more intrusive) gun control regulations (and taxes) after Heller?

June 26, 2008 in Second Amendment issues, Sex Offender Sentencing | Permalink | Comments (2) | TrackBack

Certain post-Heller uncertainty: lots of lower court Second Amendment litigation

As regular readers know, I have predicted lots of lower court litigation would follow Heller if the Supreme Court recognized an enforceable individual Second Amendment right.  Of course, that is what Heller recognizes, and all the broad language highlighted in this post provides plenty of fodder for would-be litigants eager to safeguard their gun rights.  (As I explained here, the Hayes case already taken up by the Justices is just one example of a case in which a serious new commitment to enforceable individual Second Amendment rights could and should complicate debates over statutory interpretation and the application of existing federal gun laws.)

In comments here and here on prior Heller posts today, commentors have started to spotlight laws that now seem vulnerable to constitutional attack on Second Amendment grounds.  In an effort to bring a bit more order to this discussion, I would be grateful if readers would in the comments to this post provide specific cites to specific federal (or state) criminal or sentencing laws that can and should immediately be constitutionally questioned on Second Amendment grounds in light of Heller.  Thanks!

June 26, 2008 in Second Amendment issues | Permalink | Comments (24) | TrackBack

Will (and can) "outraged" politicians really do anything about Kennedy?

As detailed in this AP article, headlined "Unbowed, politicians vow to execute child rapists," and this CBN News article, headlined "Politicians Outraged by Child Rape Ruling," many elected officials are not too pleased with the Supreme Court's work in Kennedy declaring unconstitutional all capital child rape laws.  Here are the basics from the CBN story:

Dissent from the high court's ruling reverberated around the country from Louisiana — the state where the case originated — to various levels of government. "I think the rationale for this ruling was faulty — was absurd," Louisiana's Governor Bobby Jindal said.

There was even outrage on the campaign trail, where both contenders for the White House condemned the justices' decision. And some states promised to keep looking for ways to hand down the death sentence for child rapists.

Though I can see the basis for political outrage, I do not see what states can do to work around this ruling, at least not until they can develop lots of pertinent evidence that there is a national consensus in favor of making child rapists death eligible.  And it is not even clear that such evidence would readily lead the Kennedy five to change course given their "independent judgment" against all such laws.

Here's an idea for the politicians who are really annoyed and really want to do something: propose and pass a legislative resolution saying that they strongly believe that the evolved moral norms of their constitutents would support the possibility of capital child rape for horrific, extreme cases involving multiple victims and repeat offenders.  I think that such a general resolution (which would not change and state laws and should be hard to vote against) could get lots of support in lots of state legislatures.  And if a majority of legislatures were to pass such a resolution, perhaps states other that Louisiana could try to get their (more narrowly tailored) capital child-rape laws upheld.

Some related posts:

June 26, 2008 in Kennedy child rape case | Permalink | Comments (16) | TrackBack

Justice Scalia sells out felon gun rights, but on what basis exactly?

Here are sets of quotes from the majority opinion in Heller that I have a hard time adding up:

We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.  (Slip op. at 10, emphasis added.)

It was plainly the understanding in the post-Civil War Congress that the Second Amendment protected an individual right to use arms for self-defense.  (Slip op. at 44, emphasis added.)

As the quotations earlier in this opinion demonstrate, the inherent right of self-defense has been central to the Second Amendment right.  The [DC] handgun ban amounts to a prohibition of an entire class of “arms” that is overwhelmingly chosen by American society for that lawful purpose.  The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute.  Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” 478 F. 3d, at 400, would fail constitutional muster.  (Slip op. at 56-57, emphasis added.)

A broader point about the laws that JUSTICE BREYER cites: All of them punished the discharge (or loading) of guns with a small fine and forfeiture of the weapon (or in a few cases a very brief stay in the local jail), not with significant criminal penalties....  [W]e do not think that a law imposing a 5-shilling fine and forfeiture of the gun would have prevented a person in the founding era from using a gun to protect himself or his family from violence, or that if he did so the law would be enforced against him.  The District law, by contrast, far from imposing a minor fine, threatens citizens with a year in prison (five years for a second violation) for even obtaining a gun in the first place. (Slip op. at 61-62, emphasis added.)

Summing up, it would seem that the majority holds that, pursuant to the Second Amendment, "all Americans" have an "individual right to use arms for self-defense."  And, the Second Amendment would be most problematically transgressed when this right is severely restricted in the "home, where the need for defense of self, family, and property is most acute" through the threat of years in prison rathen than just a minor fine.

As regular readers know, I think all these assertions add up to making constitutionally questionable the threat of severe sentences on felons in possession of firearms.  After all, felons are Americans with a need to protect themselves and their families through keeping guns in their home.  And yet, all felons (even non-violent ones like Lewis Libby and Martha Stewart) face the threat of 10 years in federal prison for just possessing a firearm. 

Nevertheless, the majority opinion boldly and baldly asserts that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill." (Slip op. at 54.) 

Really?  How can that (unjustified and unsupported) dicta be squared with all that has been said before?  To his credit, Justice Stevens properly asserts in this context that felons are not categorically excluded from exercising First and Fourth Amendment rights and thus the majoiry "offers no way to harmonize its conflicting pronouncements."  Time and litigation will tell if holdings or dicta end up dominating the application of the Second Amendment in future cases.

June 26, 2008 in Second Amendment issues | Permalink | Comments (54) | TrackBack

Supreme Court declares Second Amendment protects individual right

The much-anticipated Supreme Court ruling on the Second Amendment in Heller has been released, and it appears to be the expected 5-4 split decision with Justice Scalia writing the majority opinion for the Court.  Here is the early report from SCOTUSblog:

The Court has released the opinion in District of Columbia v. Heller (07-290), on whether the District’s firearms regulations — which bar the possession of handguns and require shotguns and rifles to be kept disassembled or under trigger lock — violate the Second Amendment. The ruling below, which struck down the provisions in question, is affirmed.  Justice Scalia wrote the opinion. Justice Breyer dissented, joined by Justices Stevens, Souter and Ginsburg.

As regular readers know and as explained in prior posts, I think this ruling could have a profound impact on federal criminal law and sentencing, though the exact terms of the majority opinion will determine how significant this impact will be.

UPDATE: The full opinion in Heller runs 157 pages, and everyone can read along with me at this link.  I will quote passages in a future post that could be important for the federal criminal justice system.

June 26, 2008 in Second Amendment issues | Permalink | Comments (13) | TrackBack

The Sentencing Project reponds to prison-crime commentary

This morning I received via e-mail this notable notice from The Sentencing Project:

In a recent syndicated column ("More Prisons, Less Crime"), commentator George Will argues that the world record incarceration rate in the United States has produced safer streets and has been beneficial in particular to African Americans, who are disproportionately victims of crime.  Will's selective use of data and limited vision provide an inaccurate portrayal of current criminal justice policy and its effects.

In a briefing paper, The Sentencing Project refutes Will's argument on prison racial disparities, federal crack cocaine sentencing and the impact of incarceration on crime. Do Prisons Equal Less Crime? provides an assessment of some of the key arguments raised in the Will column.

Here is one snippet from The Sentencing Project's effective briefing paper:

While differential crime offending is one contributing factor to racial disparities in prison, a wealth of research documents that it only explains a portion of the patterns in imprisonment.  A comprehensive review of research in the field conducted for the National Institute of Justice concluded that "race and ethnicity do play an important role in contemporary sentencing decisions. Black and Hispanic offenders -- and particularly those who are young, male, or unemployed -- are more likely than their white counterparts to be sentenced to prison; in some jurisdictions, they also receive longer sentences...than do similarly situated white offenders."

June 26, 2008 in Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Culture of life trumps democracy and state experimentation in Kennedy

I have now read carefully both opinions in Kennedy, and can share a few jurisprudential observations and provide my summary take-away:

1.  I was surprised (and somewhat disappointed) by how categorical and "traditional" the Court's Eighth Amendment work was in Kennedy.  Rather than a nuanced outcome like we got in Baze, the majority set out a bright-line rule to eliminate any real possibility for the death penalty for non-homicide cases.  And rather than thoughtfully explore any new approaches to the Eighth Amendment in this context, we get the tired (and silly) state-counting "moral consensus" debate and the now-standard arguments about the Court's independent judgment.

2.  Though both Justice Kennedy and Justice Alito make their arguments effectively, neither puts forward any jurisprudentially provocative ideas (and the silence from all the other Justices is deafening).  Given the mess that is the Court's capital Eighth Amendment jurisprudence and the distinctive gender issues raised in this setting, I was hoping someone (like the new Chief or Justice Ginsburg) would provide some fresh jurisprudential meat for us academics.  (I cannot help speculating what might have been in Kennedy if it had not been argued until the start of OT 2008, rather than at the end of OT 2007.)

3.  The notion that death is different, both as a punishment and as a crime, finds expression in the outcome and the entire tenor of the majority opinion.  Fans of a "culture of life" should really like what the majority is doing and saying.

4.  This telling sentence at the end of the majority's work captures the essence of its attitude toward these matters:

In most cases justice is not better served by terminating the life of the perpetrator rather than confining him and preserving the possibility that he and the system will find ways to allow him to understand the enormity of his offense.

Even if one accepts this bold and bald assertion about how to best serve justice in "most cases," I still think a strong structural argument can be made for allowing democratically elected state legislatures and executive officials to experiment with serving justice through the use of the death penalty in at least some extreme child rape cases (particular as involves repeat offenders with multiple victims).

That all said, the symbolic importance of Kennedy should not overshadow its practical insignificance.  Nearly all awful child rapists would serve extended state prison terms no matter how these jurisprudential debates were resolved, and the really consequential constitutional issues concerning sex offenders are still percolating in lower courts.

June 26, 2008 in Kennedy child rape case | Permalink | Comments (21) | TrackBack

June 25, 2008

Complaints about Georgia's efforts to keep sex offenders away from church

This interesting article in the Altanta Journal-Constitution discusses a new litigation front in Georgia efforts to keep sex offenders from holy activities.  Here are a few excerpts:

A Georgia law banning sex offenders from volunteer work at churches should be struck down because it "criminalizes fundamental religious activities," a court motion filed Tuesday says. The motion is the latest legal assault on the controversial state sex-offender registry law, one of the toughest in the nation.  A new provision says no registered sex offender shall be employed by or volunteer at a church.

This makes it a crime for sex offenders to sing in adult choirs, prepare for revivals or cook meals in a church kitchen, said the motion, which seeks a court order halting enforcement of the provision before it becomes law July 1. 

It was filed in U.S. District Court in Atlanta as part of ongoing litigation that seeks to declare the law unconstitutional. Sarah Geraghty, a lawyer with the Southern Center for Human Rights, said punishing registered sex offenders for volunteer work at a place of worship will do more harm than good.  "Certain people on the sex-offender registry should not work with children in a church setting or elsewhere," said Geraghty, one of the lawyers who filed the court motion. "With this law, the state of Georgia is driving people on the registry from the faith communities and depriving them of the rehabilitative influence of the church."

So, the Supreme Court says you cannot send child rapists to death row, and the Georgia Legislature is trying to keep them from getting closer to God in a different way.  Talk about being damned.

June 25, 2008 in Sex Offender Sentencing | Permalink | Comments (2) | TrackBack

Some first-cut reactions to Justice Kennedy's work in Kennedy

I am finally getting a chance to read the Kennedy case in full and general reaction will be coming in future posts.  But, as I work through the ruling, and I cannot help wondering aloud about some head-scratching passages in the majority's opinion prohibiting states for making child rape eligible for the sentence of death.  Specifically, I am especially perplexed by the sentence in bold from this paragraph:

Evolving standards of decency must embrace and express respect for the dignity of the person, and the punishment of criminals must conform to that rule. See Trop, supra, at 100 (plurality opinion). As we shall discuss, punishment is justified under one or more of three principal rationales: rehabilitation, deterrence, and retribution. See Harmelin v. Michigan, 501 U. S. 957, 999 (1991) (KENNEDY, J., concurring in part and concurring in judgment); see also Part IV–B, infraIt is the last of these, retribution, that most often can contradict the law’s own ends.  This is of particular concern when the Court interprets the meaning of the Eighth Amendment in capital cases. When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint.

I genuinely have no idea what this bolded sentence means, and whether it could have meaning/impact in settings beyond capital cases when the Court is applying the Eighth Amendment.  Can anyone help me understand what the heck Justice Kennedy and the others are saying here?

June 25, 2008 in Kennedy child rape case | Permalink | Comments (18) | TrackBack

Latest USSC data on crack retroactivity

I see that the US Sentencing Commission has available here updated data on the retroactive application of the crack amendment on its website.  Here is how the data is described:

A set of tables presenting preliminary data on cases in which a motion for a reduced sentence was considered under 18 U.S.C. § 3582(c)(2). These cases involve retroactive application of the crack cocaine amendment to the sentencing guidelines (Amendment 706, as amended by Amendment 711) which became effective on November 1, 2007 and which was made retroactive effective March 3, 2008.  The data represent cases received and coded by the Commission by June 12, 2008.

June 25, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (0) | TrackBack

Strong SCOTUSblog coverage of Kennedy and Exxon

As regular readers know, I think many folks get overpunished in American society, but I have never had corporations and child rapists high on my list of those needing extra protection from the Justices.  Nevertheless, as Kevin Russell effectively highlights in this effective post, a majority of Justices views differently as evidenced by the outcomes in Kennedy and Exxon

Here are links to the two opinions, which I hope to consume and discuss later (perhaps much later) today:

The opinion by Justice Souter in Exxon v. Baker (07-219), the punitive damages case, is available here.  The opinion by Justice Kennedy in Kennedy v. Louisiana (07-343), the child rape case, is available here.

In the meantime, everyone should check out the very copious and thoughtful commentary coming from Corey Yung (who gets cited in the majority opinion in Kennedy) at Sex Crimes.

June 25, 2008 in Who Sentences? | Permalink | Comments (1) | TrackBack

Big SCOTUS day open thread

The Supreme Court will issue some of its final opinions this morning.  Of course, SCOTUSblog is the best place to follow all the action.  Also, How Appealing and The Volokh Conspiracy will surely have coverage and early commentary, too.

The two biggest cases I am looking forward to seeing are the Kennedy child rape case (archive here) and the Heller Second Amendment case (archive here).  And the big Exxon case dealing with punitive damages might have some interesting punishment and due process dicta.

Because I will be on a plane during all the announcements, readers will need to supply the commentary until I get a chance to catch up this evening.

June 25, 2008 | Permalink | Comments (79) | TrackBack

Examining the "school to prison pipeline"

A helpful reader sent me this link to an online journal of the Child Welfare League called The Link.  Of interest for sentencing fans is an article starting on page six titled, "The School to Prison Pipeline and Criminalizing Youth: Costs, Consequences, and Alternatives."  Here are two interesting paragraphs from the article's introduction:

There are likely no more distinct institutions in a society than schools and prisons.  One, the school, is considered an institution that builds capacity that can serve as a ticket out of poverty and the gate that opens to a better future. The other, the prison, is used to contain those who society considers a threat to social well-being and cements poverty and diminishes opportunities. For most of the history of the United States schools were celebrated as institutions with open access to all, while prisons were disdained and hidden from view.

By the close of the 20th Century, however, these two institutions had, in some respects, reversed their positions in the social order.  Public schools are under attack for being unable to educate children and characterized as bureaucratic, violent, and amoral if not immoral, venues.  Charter schools, school vouchers, eroding property tax bases, and general taxpayer revolt challenge the funding for public schools.  In contrast, the U.S. prison system is robust, taking up increasing portions of state and federal budgets.  By the end of 2005, a record number of 2.2 million people were imprisoned in the United States.

June 25, 2008 in Scope of Imprisonment | Permalink | Comments (9) | TrackBack

Indiana post-conviction computer restriction on sex offender struck down

This local article, headlined "Sex offender law goes too far, court rules: Revision would have subjected computers to searches at any time," reports on a federal district court ruling finding constitutional problems with a new Indiana law.  Here are the basics:

A federal court in Indianapolis ruled Tuesday that a major portion of the revised Indiana sex offender law cannot be enforced.  The ruling came one week before the new law would have gone into effect.

The modified law would have required that convicted sex offenders, after they served their sentences and probation and parole time, agree to have their personal computers searched at any time and to allow their Internet access to be monitored. 

Tuesday, U.S. District Court in Indianapolis ruled that requirement of the new law went too far. "These plaintiffs have rights under the Fourth Amendment," District Judge David F. Hamilton wrote in his ruling. "The state may not force them to waive those rights under threat of criminal prosecution for failing to do so."

Marcia Oddi's at the Indiana Law Blog, I was able to find this link to the 52-page ruling by Judge Hamilton.  I suspect this case might make its way to the Seventh Circuit and perhaps further, as these issues seem likely to come up in various settings as part of the modern sex offender panic.

June 25, 2008 in Sex Offender Sentencing | Permalink | Comments (7) | TrackBack

June 24, 2008

More on crying a river in capital cases

There are so many interesting versions of "Cry Me a River" to be found on YouTube (from Joe Cocker to a young Babs), but Time magazine has a different variation in this story about Ohio prosecutors crying a river over defense counsel crying during capital cases.  Here is how the piece starts:

Defense attorneys in capital murder cases have often been accused of not working hard enough to help spare their clients the death penalty, in some cases even falling asleep in the middle of a trial. It's not often, though, that lawyers are accused of caring too much — or at least appearing to care too much — about the fate of the defendants they represent.

But that is essentially what state prosecutors in Ohio are claiming, as they try to ban attorneys from swaying a jury with the power of tears. Butler County assistant prosecutor Jason Phillabaum filed a motion last week calling on the judge to "prohibit" the defense from using emotional appeals to the jury during the upcoming capital-punishment trial of James O'Hara, who is accused of fatally stabbing Stanley Lawson last summer.

Some related posts:

June 24, 2008 in Death Penalty Reforms | Permalink | Comments (1) | TrackBack

Is Blakely showing its age as it turns four?

Today marks the four-year anniversary of the Supreme Court's profoundly important constitutional ruling in Blakely v. Washington.  Its jurisprudential godfather, Apprendi v. New Jersey, will turn eight on Thursday.  Both merit re-reading as a fitting celebration of their birth and jurisprudential development.

Though my first post on the Blakely case, headlined "Blakely..... WOW!!", still captures my feelings about the ruling, the passage of time has me rethinking my assertion in this July 2004 Slate commentary that "Blakely is the biggest criminal justice decision not just of this past term, not just of this decade, not just of the Rehnquist Court, but perhaps in the history of the Supreme Court."  (Notice that I included the term "perhaps," ever aware that I might later need to back-track from such an extreme assertion.)

Of course, the profound significance of Blakely on day-to-day criminal justice realities is still evident to anyone practicing in federal courts or in the dozens of other jurisdictions that have had their sentencing laws modified (or transmogrified) because of Blakely.  Still, back in summer 2004, I really thought — perhaps hoped — that the Blakely Five, given the broad language and strong themes of the Blakely majority opinion, were prepared and eager to champion, through additional major constitutional rulings, the traditional adversarial procedures that Blakely extolled in a wide array of sentencing contexts. 

Specifically, I expected the Blakely Five to take up quickly Sixth Amendment challenges to judicial fact-finding in diverse sentencing settings — e.g., revoking supervised release, ordering restitution.  I also thought that the Blakely Five might be eager to reconsider the prior-conviction and mandatory minimum exceptions to the Apprendi principle.  In 2004, I also believed that the Fifth Amendment holding and due process principles implicit in Blakely might find broad expression in all various sentencing settings (and I certainly did not expect to be still fighting uphill battles in lower courts against sentencing enhancements based on acquitted conduct).

Four years later, however, as lower courts continue to cabin the reach and impact of Blakely (as highlighted by a Tennessee high court ruling just today), it is hard to notice any continuing aftershocks of the Blakely earthquake.  One obviously explanation, of course, is that the Booker advisory remedy provided a relatively easy "out" for the federal system and others dealing with the constitution complications Blakely created for structured sentencing systems.  But, perhaps even more significantly, the Justices' apparent disinclination in the last four years to consider Blakely-expanding claims made by defendants has sent a clear (and intended?) signal to lower courts that the Justices are generally disinclined to follow-up on Blakely in any dramatic way.

June 24, 2008 in Blakely Commentary and News | Permalink | Comments (7) | TrackBack

Tennessee Supreme Court turns back Blakely challenges to consecutive sentencing

The Tennessee Supreme Court today in State v. Allen (Tenn. June 24, 2008) (available here), turns back two defendants' argument that Apprendi and Blakely limit judicial fact-finding to support the imposition of consecutive sentences.  Here is a key paragraph at the start of the Court's analysis:

In Defendant Lumpkin’s case, the trial court ordered partial consecutive service after finding Lumpkin to be a “dangerous offender.” See Tenn. Code Ann. § 40-35-115(b)(4). In Defendant Allen’s case, the trial court ordered partial consecutive service after finding Allen to be “an offender whose record of criminal activity is extensive” and a “dangerous offender.”  Id. § 40-35-115(b)(2), (4).  Both Defendants argue that the imposition of consecutive sentences on the basis of these judicially-determined facts violates their federal constitutional rights as explicated in Apprendi and Blakely.  The Defendants point to the Supreme Court’s statement in Blakely that “[w]hen a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts ‘which the law makes essential to the punishment’ and the judge exceeds his proper authority.” Blakely, 542 U.S. at 304 (citation omitted).  The Defendants contend (1) that their effective terms of service, arrived at by adding together their consecutive sentences for separate offenses, is the punishment on which we must focus and (2) that the cumulative punishment they are facing could not have been imposed absent post verdict factual findings by the trial court; ergo, in violation of Blakely’s holding. As Defendant Lumpkin’s counsel puts it, “[t]he facts necessary to sustain the imposition of consecutive sentencing in this case are not included within the jury’s verdict of guilt of the individual offenses.”  As set forth below, however, we are persuaded that neither Apprendi nor Blakely apply to a trial court’s post-verdict findings and decisions about the manner in which a defendant serves his discrete sentences for multiple offenses.

The Tennessee Supreme Court acknowledges that the US Supreme Court will be taking up this issue next Term in Oregon v. Ice, and the Allen opinion provides a nice primer on the debate that the SCOTUS Justices will have sort through.

June 24, 2008 in Blakely in the States | Permalink | Comments (0) | TrackBack

UK judges not too keen on guideline sentencing

This interesting article from The Guardian, headlined "Judges fight plans for US-style sentencing," spotlights that judges across the pond are not interested in a guideline-sentencing system.  Here are snippets from the article:

Plans for a US-style sentencing "grid" to try to contain prison numbers in England and Wales have been condemned by judges, the Guardian has learned. In their response to the government's proposals, which were trailed in the draft Queen's speech last month, the 652 circuit judges said: "The American dream would result in a nightmare in England and Wales."...

In their strongly-worded response, which has been seen by the Guardian although it has not yet been published, the circuit judges, responsible for most sentences passed in the crown courts, say it would be almost impossible to devise a framework for England and Wales. "It would be a blunt instrument resulting in unfairness and injustice," they add.

The circuit judges say they would see the creation of a sentencing commission as "a thinly disguised attempt by the state ... to ensure that the state achieves the result it desires, avoiding the inconvenient intervention of justice".... The judges also warn that by decreasing their discretion a sentencing grid would impact harshly on some groups of offenders, such as women with young children, who are often treated sympathetically under the current system.

June 24, 2008 in Sentencing around the world | Permalink | Comments (1) | TrackBack

Extended discussion of sentencing review by Second Circuit

The Second Circuit discusses Rita, Gall, and Kimbrough at great length in a new opinion today in US v. Jones, No. 05-5879 (2d Cir. June 24, 2008) (available here).  There is a lot to chew on here that should be of interest to folks both inside and outside the circuit.  Here is a snippet from one of many thoughtful passages from the panel in Jones (with lots of cites omitted):

Kimbrough and Gall both emphasize that, after Booker, the Guidelines’ claim on judicial respect derives from the fact that the Sentencing Commission “has the capacity courts lack” to frame Guidelines on the basis of “empirical data and national experience, guided by a professional staff with appropriate expertise.”

At the same time, however, the Court recognized that, to the extent certain Guidelines “do not exemplify the Commission’s exercise of its characteristic institutional role,” that fact could obviate the need for closer review of non-Guidelines sentences based on policy disagreements in “mine-run” cases.

June 24, 2008 in Booker in the Circuits | Permalink | Comments (0) | TrackBack

"Appellate Discretion and Sentencing after Booker"

The title of this post is the title of this article by Lindsey Harrison now appearing on SSRN. Here is the abstract:

When the Supreme Court in United States v. Booker rendered the United States Sentencing Guidelines advisory, most analysts initially predicted that federal sentencing would be invigorated by a "surge of judicial discretion."  Many defense attorneys and members of the news media hailed the decision a victory for criminal defendants, while others celebrated Booker for its emancipation of district court judges from the tyranny of the Guidelines.  Less explored in Booker's immediate aftermatch was how the decision would affect the courts of appeals' review of district court sentencing decisions.  What has resulted is primarily confusion about the role of the appellate courts in reviewing sentences. Several often seemingly conflicting imperatives are at play after Booker: the district court's discretion to impose a sentence unconstrained by the Guidelines, the obligation of the court of appeals to show deference to the substantive judgment of the district court, and the simultaneous authority of the court of appeals to review (and thus to disagree with) the substantive reasonableness of the sentence the district court has imposed.  The challenge after Booker is, in light of these imperatives, how to define the scope of the courts of appeals' authority with respect to sentencing, or what I call "appellate discretion" to review district court sentencing decisions.  Although there is a logical way to balance appellate discretion with deference to the district court, too often after Booker the courts of appeals have tipped to one extreme or the other.

In this article, I explore post-Booker sentencing cases in the courts of appeals.  In Part II, I provide a brief history of sentencing law from before the adoption of the Sentencing Guidelines up through Booker, highlighting the changes in appellate discretion over this period coinciding with the shift from no Guidelines to mandatory Guidelines to the current advisory-Guidelines system.  In Part III, I explore the confusion that has resulted since Booker, which has manifested in a series of circuit splits centering largely on the circuits' different understandings of their own discretion after Booker.  I also explain how certain of these splits were resolved by the Supreme Court's decisions in Rita, Gall, and Kimbrough.  In Part IV, I focus on the Eleventh Circuit's sentencing cases since Booker, Rita, Gall, and Kimbrough, exploring the underlying theme of the Circuit's struggle to define its own discretion.  Finally, in Part V, I advance a modest proposal for what I view as the proper appellate role in sentencing decisions after Booker, proposing specific rules for appellate review based on the Supreme Court's guidance in Rita, Gall, and Kimbrough.  By observing these rules, the Eleventh Circuit, and all of the courts of appeals, would more faithfully execute the type of limited abuse-of-discretion review that the Supreme Court has envisioned for the courts of appeals after Booker.

June 24, 2008 in Booker and Fanfan Commentary | Permalink | Comments (1) | TrackBack

Lethal litigation to continue with dueling doctors in the first state

As detailed in this local article, the post-Baze litigation excitement in Delaware is taking place in local federal court.  Here is the latest news from an article headlined "Doctors to testify on lethal injections: Each side in death-penalty suit to bring in an anesthesiologist":

A federal judge said she was "stunned" on Monday that Delaware has not adopted a U.S. Supreme Court-approved standard for carrying out executions to resolve a lawsuit challenging the state's use of lethal injection.  District Judge Sue L. Robinson said it was clear to her that there are differences between Delaware's execution protocols and those used in Kentucky, which the high court found met constitutional muster earlier this year.

However, Robinson said, she does not believe she is qualified to tell if the differences are significant or not. "It is not a question of law. I need expert testimony." So she set Sept. 10 to hear from opposing experts in the class-action lawsuit brought by Delaware's death-row inmates.  The civil action charges that the state's policies are so flawed -- and rarely followed -- that they violate the constitutional protection against cruel and unusual punishment.

June 24, 2008 in Baze lethal injection case | Permalink | Comments (1) | TrackBack

"Three-crimes-a-day thief calls for tougher sentencing"

The headline of this post is the headline of this article from Canada's Globe and Mail.  Here's part of the story:

For about four years, police have been routinely interviewing incarcerated chronic offenders in an attempt to figure out what makes them tick, and also to warn them that investigators are monitoring them....

Deputy Chief Le Pard said that police are "not alone" in seeking longer sentences for chronic offenders. "Our support came from the last place we would expect," he said.

That was an anonymous offender who turned himself in on a breaking-and-entering charge and, over the past weekend, had a few choice words about the justice system that he delivered to a member of the chronic-offenders unit, who recorded the conversation on video....

The 32-year-old lifelong criminal, who claimed to commit three break-ins a day in Vancouver before being voluntarily incarcerated, called the B.C. court system "a joke."  "They are too lenient. They're too light. That's just how I think, that's how I feel. The crimes that I've committed, I should have gotten a lot more time," he said. "I'm sure if I wanted to I could go to court and get bail," he said. "They'd say, 'He 'fessed up to it,' you know, 'Just let him out.' I guarantee they'd let me out."

All of this was another bid by police to hammer home the view, first outlined by Chief Constable Jim Chu last week, that action is needed to deal with the city's worst chronic offenders, who tend to be lightly sentenced for property crimes fuelled by drug addiction even when they have up to 30 convictions.

June 24, 2008 in Sentencing around the world | Permalink | Comments (9) | TrackBack

June 23, 2008

Fifth Circuit begrudingly affirms looney mandatory sentence in Looney

With thanks to the folks who alerted me to the decision, I can encourage everyone to check out the Fifth Circuit's work today in US v. Looney, No. 06-10605 (5th Cir. June 23, 2008) (available here), in which the panel criticizes federal prosecutors for a stacked indictment which resulted in a functional mandatory life sentence 53-year-old woman's first offense.  Here are the key closing paragraphs from the per curiam opinion in Looney:

We have carefully considered all of Ms. Looney’s challenges to her sentence and can find no basis upon which to vacate any portion of it.  As we have noted, Ms. Looney was subject to a mandatory minimum sentence of forty years — essentially determined by Congress.  Although Congress established the mandatory minimum terms of imprisonment, and further provided that the firearms counts must be served consecutively, it is the prosecutor’s charging decision that is largely responsible for Ms. Looney’s ultimate sentence.  Instead of charging Ms. Looney with two separate § 924(c) offenses, the prosecutor might well have charged her with only one, which would have avoided triggering the twenty-five-year mandatory, consecutive sentence for the second firearm count.  The prosecutors also could have chosen to charge Ms. Looney with the drug offenses and requested a two-level enhancement under the Sentencing Guidelines based on the involvement of firearms with the offenses. Instead, the prosecutor exercised his discretion — rather poorly we think — to charge her with counts that would provide for what is, in effect, a life sentence for Ms. Looney.

We do not question the authority — or the wisdom — of Congress’s decision to punish severely individuals who possess weapons in furtherance of drug dealing.  Nor do we in any way minimize the seriousness of Ms. Looney’s offenses. Moreover, there is nothing legally improper about the prosecutors’ charging decisions with respect to Ms. Looney, nor about the practice of confecting an indictment that would provide for the largest mandatory sentence.  Nevertheless, we must observe that the power to use § 924(c) offenses, with their mandatory minimum consecutive sentences, is a potent weapon in the hands of the prosecutors, not only to impose extended sentences; it is also a powerful weapon that can be abused to force guilty pleas under the threat of an astonishingly long sentence.  For example, a defendant who sincerely and fervently believes in his innocence, and who has witnesses and other evidence that support his claim of innocence, could easily be pressured into pleading guilty under a plea agreement that eliminates the threat — rather than face the possibility of life imprisonment based on a prosecutor’s design of an indictment that charges and stacks mandatory minimum consecutive sentences. We merely observe that the possibility of abuse is present whenever prosecutors have virtually unlimited charging discretion and Congress has authorized mandatory, consecutive sentences.  We trust that the prosecutors in this Circuit are aware of the potency of this weapon and its potential for abuse, and that they exercise extreme caution in their use of it, all in the interests of justice and fairness.

June 23, 2008 in Mandatory minimum sentencing statutes | Permalink | Comments (8) | TrackBack

Eighth Circuit tries to unpack Kimbrough in en banc ruling

Resolving a post-Booker case that's been keeping the Circuit busy for years, the Eighth Circuit today issues another opinion in US v. Spears, No. 05-4468 (8th Cir. June 23, 2008) (en banc) (available here). Here is the unofficial summary from the Eighth Circuit's terrific opinion page:

On remand from the Supreme Court for reconsideration in light of Kimbrough v. United States, 128 S.Ct. 558 (2007). For the court's earlier opinion in the case see United States v. Spears, 469 F.3d 1166 (8th Cir. 2006) (en banc).  In light of Kimbrough, the court adopts the determination that, under Booker, the cocaine Guidelines, like all other Guidelines, are advisory only; district court erred by categorically rejecting the ratio set out in the Guidelines, by substituting its own crack to cocaine ratio and by failing to conduct any additional analysis of the factors set out in 18 U.S.C. Sec. 3553(a); case remanded for further proceedings.  Judge Murphy, concurring.  Judge Colloton, dissenting, joined by Wollman, Bye, Melloy and Smith.

UPDATE:  A helpful commentor notes that the Third Circuit's post-Kimbrough insights in the Gunter case were handed down this month and can be accessed here.  The story of crack sentencing in federal court has so many chapters, it is hard to keep them all straight.

June 23, 2008 in Kimbrough reasonableness case | Permalink | Comments (9) | TrackBack

Lots of criminal technicalities in SCOTUS cert grants

As detailed here at SCOTUSblog, the Supreme Court granted cert in seven cases today, three of which involve criminal justices issues.  In my view, the criminal cases granted today do not have any blockbuster potential, although I find intriguing that a grant in one case indirectly brings state clemency issues before the court.  Here is the SCOTUSblog account of this case from the Sixth Circuit to be argued next Term before the Justices:

Docket: 07-8521
Case name: Harbison v. Bell

Issue: Whether the Terrorist Death Penalty Enhancement Act of 2005 provides prisoners sentenced under state law the right to federally appointed and funded counsel to pursue clemency under state law, and whether a district court’s denial of such a request may be appealed without a certificate of appealability.

June 23, 2008 in Who Sentences? | Permalink | Comments (4) | TrackBack

Supreme Court vacates in Greenlaw and Rothgery

Here's an early report from SCOTUSblog on the two criminal justice opinions released by the Supreme Court this morning:

The Court has released the opinion in Greenlaw v. United States (07-330), on whether a federal court of appeals may increase a criminal defendant’s sentence in the absence of a cross-appeal by the government. The ruling below, which increased the defendant’s sentence, is vacated and remanded. Justice Ginsburg wrote the opinion. Justice Alito dissented, joined by Justice Stevens and joined in part by Justice Breyer....

The Court has released the opinion in Rothgery v. Gillespie County (07-440), on the point at which adversarial proceedings have been initiated against an individual for purposes of triggering his Sixth Amendment right to appointed counsel. The ruling below, which found for the state, is vacated and remanded.  Justice Souter wrote the opinion.  The Chief Justice and Justice Alito wrote concurring opinions. Justice Thomas dissented. We will provide a link to the decision as soon as it is available.

A link to the decision in Greenlaw, which has a particularly interesting line-up of Justices, is now available here.  A link to the decision in Rothgery is now available here.  Commentary on these rulings will follow later today.

SCOTUSblog reports that the next release of opinions will be Wednesday morning, and the folks there also sensibly speculate that Justice Scalia is going to be the author of the majority opinion in the Heller Second Amendment case.

June 23, 2008 in Who Sentences? | Permalink | Comments (15) | TrackBack

Any provocative predictions for the big SCOTUS week?

It is widely expect that the Supreme Court will issue its final 10 opinions of the term this week, with some coming this morning and the rest likely handed down later in the week.  Of course, SCOTUSblog is the best place to follow all the action

The two biggest cases I am looking forward to seeing are the Kennedy child rape case (archive here) and the Heller Second Amendment case (archive here).  But a number of other cases due this week could also be sleepers for sentencing fans.  For example, the big Exxon case dealing with punitive damages might have some interesting punishment and due process dicta.

Other than predicting that Justice Anthony Kennedy will re-emerge as a swing Justice and that a few other Justices may say some unexpected things (like Justice Scalia did last week), I have no profound predictions to make going into the week.  But perhaps readers do, and nows the chance to make bold predictions in the comments before the opinions start coming down in a few hours.

June 23, 2008 in Who Sentences? | Permalink | Comments (3) | TrackBack

The popularity of LWOP instead of death in Ohio

This local AP story provides a great account of the impact in Ohio of the state's recent creation of an LWOP option in cases that would otherwise be death-penalty-eligible.  Here are snippets from an interesting piece:

Prosecutors around Ohio, citing the ability to pursue harsh punishment without going through the complication and expense of a death penalty case, are starting to take advantage of the 2005 law, according to a review of state records by The Associated Press. The number of death penalty indictments sought statewide dropped 32 percent from 2004 to 2007, according to figures compiled by the Ohio Public Defender's Office.

Meanwhile, the number of life without parole sentences rose by more than two-thirds in the three years since the law took effect compared with the three years before, when 45 inmates entered prison with the permanent life sentence, according to the Department of Rehabilitation and Correction. Ten offenders have received the sentence so far this year....

The new law is attractive to prosecutors because of the cost of capital punishment trials and because juries increasingly prefer life without parole as a death penalty option, said State Public Defender Tim Young.

A death penalty trial can easily top $100,000 for a county as extra staff, investigators and psychological experts are hired by the defense and prosecutors. It's not inexpensive for a large county but can drain the annual budgets of smaller counties without help from the state.  "If you can come to a life without parole option without having to go through that cost and it satisfies the public's need for safety and punishment, then that makes a real reasonable outcome for everyone involved," Young said.

June 23, 2008 in Death Penalty Reforms | Permalink | Comments (4) | TrackBack

June 22, 2008

Deconstructing the federal career offender guidelines

As noted here, the federal defenders' first paper in its important "Deconstructing the Guidelines" project addressed the child porn guidelines (and has already been cited by a district court to justify a below-guideline sentence).  I now see that a second paper has now been posted, and it is titled "Deconstructing the Career Offender Guideline."  This extraordinary paper runs 50 pages, and can be accessed here along with helpful appendices.  Here is part of the paper's introduction:

The career offender guideline does not reflect “empirical data and national experience” and “do[es] not exemplify the Commission’s exercise of its characteristic institutional role.” Kimbrough, 128 S. Ct. at 575....

Part II (pp. 32-42) describes a variety of evidence demonstrating that the [career offender] guideline produces punishment that is greater than necessary to satisfy any purpose of sentencing, and that creates unwarranted disparities, including racial disparity, and unwarranted uniformity, while being more costly today than projected in 1987 due to the Commission’s substantial expansion of the career offender category.  The evidence consists of the Commission’s own critical findings, available sentencing data, judicial decisions, and some data on the growth of the career offender population.

June 22, 2008 in Federal Sentencing Guidelines | Permalink | Comments (0) | TrackBack

The sad state of executive clemency in Ohio

Given that Ohio's current governor is a former prison psychologist (background here), I had hoped that Governor Ted Strickland might be a bit more courageous in his use of his executive clemency power than some of his predecessors.  Unfortunately, as this Columbus Dispatch article reveals, only a few murderers have gotten the benefit of Gov. Strickland's mercy:

Strickland has 289 clemency requests on his desk ahead of Tapp's. The governor has used his clemency power just three times, all in death-penalty cases, since taking office nearly 18 months ago.

The linked article profiles the case of Brad Tapp, who has already served over eight years for two counts of assault and would appear to be a good candidate for clemency:

The trial judge in his case has twice signed affidavits stating that the sentence he meted out was far too harsh, and the Ohio Parole Board unanimously recommended in 2005 that Tapp be granted executive clemency....  The parole board, which had been reviewing Tapp's new clemency request for six months, made a quick decision last week after an inquiry by The Dispatch, and again recommended clemency....

Tapp's parents, ex-wife, two daughters -- Aurora, 16, and Amberley, 14 -- former employers and dozens of friends are in his corner. So are two former veteran Delaware County deputies who wrote letters on his behalf.  "Yes, criminal activity did take place," Deputy Loren G. Pool told the parole board. "Not the kind that takes 14 years from a man."...

Amberley Tapp is upset with the justice system.  "I pray to God that the governor is going to do something about it and let me have a dad for the summer," she said in a telephone interview. "I still love him, every bit of me."  Tapp admits that he was selfish and driven to succeed at all costs as a young man. In prison, he has earned two theology degrees and said he had a "born-again experience."

Here's hoping that this media attention (as well as coverage from Pardon Power) noting Gov. Strickland's failure to use his clemency power might goad him into action.

June 22, 2008 in Clemency and Pardons | Permalink | Comments (8) | TrackBack

Why does George Will like big government when it involves depriving some citizens of liberty?

Just last week, George F. Will wrote in this column that "No state power is more fearsome than the power to imprison."  And Wll has recently criticized modern Republicans for growing the size of government (such as in this 2006 speech to the Cato Institute in which Will stressed that "liberty has to be fought for and argued for and defined").  Indeed, in various contexts, Will has often espoused the virtues of "libertarian, limited-government conservatism."

But, as detailed from his column today in the Washington Post, titled "More Prisoners, Less Crime," his support for limited government and his purported commitment to liberty melts away when the topic is crime and punishment.  Disappointingly, rather than take a serious look at the important economic and human liberty questions surrounding modern mass incarceration (which Senator Webb just this week was exploring), Will in this column simply echos pro-imprisonment researchers, who assert that the US affinity for mass incarceration is producing more gains than harms, in order to attack liberals for questioning the extreme US incarceration rate.

It continues to amaze me that so few pundits and academics who claim to be champions of small government and the principles of liberty are so unwilling to carefully examine or even question the modern American affinity for incarceration.  Too bad I now need to add George Will to the list of folks more eager to attack opponents than to follow his principles wherever they might lead him.

June 22, 2008 in Scope of Imprisonment | Permalink | Comments (25) | TrackBack

Juve crime, adult punishment and now ... adult trial rights in Kansas

Thanks to this post at How Appealing, I sse that the Kansas Supreme Court on Friday held In the matter of LM, No. 96, 176 (Kan. June 20, 2008) (available here), that "that juveniles have a right to a jury trial under the Sixth and Fourteenth Amendments to the federal Constitution and the Kansas Constitution."  Local articles here and here provide a summary of the ruling and it's potential impact.  From the Kansas City Star:

In a decision affecting every juvenile criminal case in Kansas, the state Supreme Court has guaranteed juvenile defendants the right to a trial before a jury.  The court ruled Friday that young defendants should be afforded the protections of a jury because the distinctions between juvenile and adult justice have eroded over the past 20 years as lawmakers cracked down on juvenile crime.

The decision sent a shock wave through the juvenile justice community. Prosecutors and judges said the likely result is more juries, longer trials and higher expenses. “This is huge,” said state Sen. Phil Journey, a Haysville Republican.  But Journey, a criminal defense attorney, said the ruling is justified.  “You cannot impose adult penalties on little children without giving them adult due process,” he said.

June 22, 2008 in Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack